1505464 (Refugee)

[2017] AATA 801

1505464 (Refugee) [2017] AATA 801 (18 April 2017)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  1505464

DIBP REFERENCE(S):  CLF2014/139146

COUNTRY OF REFERENCE:                  China

MEMBER:Susan Pinto

DATE OF DECISION:  18 April 2017

DATE CORRIGENDUM

SIGNED:2 June 2017

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

The words on the Decision record front page where it says “DATE:  “18 April 2016” should be replaced with “DATE: “18 April 2017”

Susan Pinto
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1505464

COUNTRY OF REFERENCE:                  China

MEMBER:Susan Pinto

DATE:18 April 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 18 April 2017 at 3:50pm

CATCHWORDS
Refugee – Protection visa – China – Religion – Underground Christian church – Local church – Particular social group – Black children – Birth control policy – Social compensation fee – Return trips to China – Delay in applying for protection

LEGISLATION
Migration Act 1958, ss 36, 65, 499
Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant, who claims to be a citizen of China, is aged in his [age range]. He claims that he is from Fuqing city in Fujian province. The applicant arrived in Australia on a [temporary] visa [in] August 2002. Since his initial arrival, the applicant has made eight trips outside of Australia to China. His last arrival was [in] May 2013. He married in Australia in 2009 and his three children were subsequently born in Australia. [In] December 2009, the applicant applied for a Partner visa on the basis of his marriage to his wife. The applicant’s wife had been granted a Partner visa on the basis of a previous relationship. The applicant’s wife’s Partner visa was cancelled [in] May 2012 and the delegate’s decision was affirmed by the Migration Review Tribunal on 1 July 2013.

2. The applicant applied to the Department of Immigration for the Protection visa [in] November 2014. The applicant claimed that he will be harmed in China as a result of his involvement in an underground Christian church. The applicant also claimed that he and his wife will be unable to pay the Social Compensation fees which will be payable for the births of their children.

3. The delegate of the Minister for Immigration refused to grant the Protection visa [in] March 2015.  The delegate found that the lengthy delay in the lodgement of the application following the applicant’s initial arrival and the several return trips he made to China, even after he claims his family members had been arrested, do not indicate that he genuinely fears harm in China. The delegate also found that the applicant would be able to pay the Social Compensation fees to enable his children to obtain household registration (hukous). This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

4. The Tribunal must consider whether the applicant has a well founded fear of persecution for one of five reasons which are set out in the Refugees Convention. These include his race,  religion, nationality, membership of a particular social group or his political opinion. If the Tribunal is not satisfied that the applicant meets the Refugees Convention it must consider whether the applicant meets the Complementary Protection provisions which require that there are substantial grounds for believing as a necessary and foreseeable consequence of the applicant being removed from Australia to China that there is a real risk he will suffer significant harm, which includes arbitrary deprivation of life, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment.

   CLAIMS AND EVIDENCE

   Application to the Department

5. When lodging the application to the Department, the applicant stated that he speaks, reads and writes Mandarin and English. He also stated that his religion is Christian. He indicated that he was married in [City 1, Australia] [in] September 2009. He stated that his wife and three children are citizens of China and reside in Australia. The applicant’s children were born in Australia in [specified years]. The applicant stated on the application form that he had [number] years of education, including in [City 1] at [specified schools and colleges]. He stated that he had been self-employed in [an] industry for [a company] from 2006.

6. The applicant indicated on the application form that he had lived at various addresses in [City 1] since his initial arrival in 2002. From July 2014 he had lived at [an address in a suburb] and from August 2008 until July 2014 he lived at [an address in Suburb 1].

7. In a statutory declaration provided with the application, the applicant states that he was born in Fujian in China. His parents were both Christians and they attended a house church together with other family members. Their church was called the Local church and they read the Recovery Bible, edited by [name], and the book ‘Morning Revival’. The applicant attended a house church from an early age. The applicant states that when he was in the [specified] year of middle school his house church was closed by the local government. His parents were penalised and he was also cautioned. The local government claimed that their church was unauthorised and they were gathering illegally. They confiscated their bibles and later their school prohibited the students from converting or attending any house churches.

8. In 2002 the applicant came to [Australia]. At first he could not find any Local church branches so in 2003 a friend recommended a small flock gathering, and he began to attend. He was baptised in 2004. The gathering went for more than three years and the people who attended it were mostly their countrymen, and they shared a common experience of attending house churches when they were in China. They usually attended gatherings once a week, but as time went on many of the people stopped attending because they were migrants. However, the applicant insisted on taking part in all the gatherings.

9. In 2006 the applicant met his wife [who] was living in Australia on a [temporary] visa. They shared a common faith in Christianity and they both attended church together. In 2009, they married and subsequently had three Australian born children; [genders specified]. Although the applicant was able to support himself and his family during his education, he and his wife are not well off and enjoy their “life in adversity”. The applicant states that as an overseas [person] from China he was “reluctant in filing this application because I hate to be a refugee, but a series of mishaps that recently happened in my home town have compelled me to do so”.

10. The applicant states that [in December] 2012 his father was put into custody for three days on the charge of attending house churches organised by the Local church. The applicant’s father was released after he was brainwashed by the local government and he was placed under surveillance. In May 2013 the applicant returned to China and he witnessed his father being taken away by the local government for investigation. The applicant’s [Relative 1] was [an occupation] in a [workplace] and was arrested in October 2014 for participating in preaching activities organised by the Local church. Later, she was suspended from her [position] whilst undergoing further investigation. The applicant is aware that everyone in Australia can freely practice their faith and recently he began attending a gathering of the Local church, which is better than his previous church. He feels as if he has found a home for his faith and he wants to serve the Lord.

11. The applicant states that the other reason he has lodged an application for protection is because he is apprehensive about the birth control policy in China. According to the local regulations in his home town he will have to pay a penalty of at least 150,000 yuan or as much as hundreds of thousands if he wants to apply for a residence permit for his child. This is far beyond his economic means and will result in his children becoming “black children” or children without “permanent residence permits”. The applicant states that they will be discriminated against and be denied social benefits, such as health care or education. One of his countrymen was forced to pay 700,000 yuan as a penalty for violating the birth control policy and because he could not pay this amount he was imprisoned and tortured both mentally and physically while his pregnant wife was forced to receive an abortion and sterilisation.

12. The Chinese government is carrying on a relentless birth control policy in rural areas and this has greatly frightened him and driven him to desperation. He wants to defend his children’s rights to survive. Since being in Australia he has received an education which highlights the values of freedom and human rights and he cherishes these values.

13. The applicant attended an interview with the delegate [in] March 2015. The Tribunal has listened to the CD Rom recording of the interview and the relevant evidence is summarised below.

    Application for review

14. When lodging the application to the Tribunal, the applicant provided a copy of the delegate’s decision record.

15. The applicant appeared before the Tribunal on 11 April 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Does the applicant have a well founded fear of persecution or is there a real risk that he will suffer significant harm?

16. The Tribunal firstly finds on the basis of the applicant’s Chinese passport that he is a citizen of China. The Tribunal also accepts that the applicant is from Fujian province. In considering whether the applicant has a well founded fear of persecution or if there is a real risk of significant harm, the Tribunal has had regard to the applicant’s written claims and his oral evidence to the Department and the Tribunal. The Tribunal has also had regard to the Department of Foreign Affairs and Trade’s Country report on Fujian[1]and its Thematic report on unregistered religious organisations in China.[2] Having considered all of the evidence, the Tribunal does not accept that the applicant is a truthful witness. The Tribunal considers that the applicant has manufactured the totality of his claims relating to his religion. The Tribunal does not accept that the applicant is a Christian or that he has had any involvement in Christianity in China or Australia. The Tribunal accepts that the applicant has three children and he has breached China’s family planning policies. However, the Tribunal does not accept that the applicant will be subject to fines for all three of his children. The evidence, discussed below, indicates that he and his wife are permitted to have two children in Fujian and the Tribunal does not accept that the applicant will be unable to pay the Social Compensation fee which will be payable for the third child. The Tribunal’s consideration of the evidence and its reasons for reaching these conclusions follows.

    Religion claims

    [1] Department of Foreign Affairs and Trade 2016, DFAT Thematic Report: Fujian Province, People’s Republic of China, 16 December.

    [2] Department of Foreign Affairs and Trade 2015, DFAT Thematic Report: Unregistered religious organisations and other groups in the People’s Republic of China, 3 March.

17. The Tribunal has first considered the applicant’s claims relating to his religious beliefs. As stated above, the applicant has claimed that he fears harm due to his involvement in underground Christianity in China. When the applicant was asked by the Tribunal about his fears relating to his religion, he stated that his church is a family church so the Bible they practise is different than those used by other churches. The applicant stated that it is written by [name] and contains notes and it is called the Recovery Bible. When the Tribunal asked the applicant for more details regarding the Recovery Bible, the applicant stated that it refers to God who sent Jesus to Egypt and there was a “bad guy”. He stated that Jesus then returned and this was mentioned in the Bible. When asked if he could provide more details regarding the contents or structure of the Recovery Bible, the applicant stated that it talks about what they should do for God and it is similar in structure to other bibles. The Tribunal agreed that the Recovery Bible is similar to other Bibles in structure and asked the applicant if he could generally describe the contents of the Bible. The applicant indicated that he could not recall and when advised by the Tribunal that one of the chapters is the Gospel according to Matthew and asked what is in that chapter, the applicant stated that it is written for Jewish people. When asked about the other Gospels, the applicant indicated that he could not recall at the moment. When asked if he could explain the other beliefs of the Local church, the applicant stated that Jesus was crucified for our sins and then returned. The applicant also referred to the parables, but indicated that he could not remember the parables. The applicant also told the Tribunal that he was baptised several years ago at someone’s home.

18. The applicant indicated, when asked by the Tribunal, that he is aware of the Local church practise of “pray-reading” and stated that this is when they pray from the Bible and different people take turns reading from different sections of the Bible. The applicant also stated that Jehova is the only God, and people will be taken again. The Tribunal advised the applicant that it has doubts that he engaged in pray reading because he appears to know very little about the Recovery Bible or Local church beliefs or Christian concepts more generally. The applicant stated that when they practise their religion there are dozens of people reading the bible and very few bibles and they do not have a church. The applicant was advised that he has been in Australia for almost 17 years and he appears to have acquired very limited knowledge during that time. The applicant stated that he went to a different church, which was called [name] and it was not a Local church, and they preached differently than in his church. When asked why he did not attend a Local church, the applicant stated that because the Local churches are far away, but he has since attended a Local church in [a suburb] and one in [another suburb].

19. The Tribunal accepts that the applicant was aware, when asked during the hearing, about some aspects of the Local church, including the fact that a different bible, the Recovery Bible, is used by the Local church, and he was also aware of the concept of “pray reading” or the reading of excerpts from the Bible which is practised by members of the Local church during their services. However, the Tribunal does not accept that the applicant exhibited any genuine understanding of the contents or structure of the Recovery Bible or of the beliefs of the Local church. The evidence before the Tribunal indicates that the Recovery Bible is in a similar structure to the New and Old Testaments, apart from containing footnotes and cross references.[3] Whilst the applicant was aware of pray reading he did not know the contents of the Bible and in such circumstances the Tribunal does not accept that he has engaged in pray reading. The Tribunal considers that the applicant’s evidence was indicative of someone who had attempted to learn some Local church concepts but did not have any genuine interest or understanding of those concepts. The Tribunal has had regard to the applicant’s explanation relating to his limited understanding of these concepts and has also had regard to the fact that a Tribunal hearing is a stressful situation for all applicants. However, even having regard to these factors, the Tribunal is not satisfied that the applicant’s knowledge of Christian concepts or Local church concepts was in any way consistent with his claims to be from a Christian family who has been practising as a member of the Local church for many years. The applicant has been in Australia for some 15 years and has had ample opportunity to freely participate in the Local church or other Christian churches in Australia. The Tribunal considers that his limited knowledge is indicative of the fact that he has had no such involvement and the extent of his involvement is learning some aspects of the Local church for the purposes of fabricating claims for Australia’s protection. The Tribunal does not accept that the applicant has been baptised in Australia or that he has attended or participated in religious activities in Australia.

    [3] See

20. The Tribunal’s findings above that the applicant’s claims in relation to his religion have been fabricated for the purposes of lodging an application for protection are strengthened considerably by the timing and the significant delay in the lodgement of the application following his arrival in Australia. As indicated above, the applicant arrived in Australia in August 2002. He claims that he is from a family who was involved with the Local church for many years and their ability to freely practise their religion was restricted by the government. However, the applicant applied for a Protection visa only after his wife’s Partner visa was cancelled and she was no longer able to sponsor the applicant in relation to his own Partner visa application. The applicant told the Department and the Tribunal that he did not want to be a refugee in Australia and it was for that reason he had not sought Australia’s protection at an earlier time. When asked during the hearing about the delay in the lodgement of the application, and he was also asked why he did not apply for protection when he returned to Australia in 2013 if his father was arrested in May 2013, the applicant stated that his wife’s case was being processed at that time and he was holding a Bridging visa. He also stated that he did not think the Chinese government would persecute him, but he later discovered that many of the brothers and sisters had been arrested. When the applicant was advised by the Tribunal that his return to China on eight occasions is not indicative of someone who fears harm in China, the applicant stated that he returned only for short periods and he would hide himself away during those times. He also stated that the authorities focus on arresting people during Easter or Christmas and he did not return during those periods.

21. The Tribunal does not accept the applicant’s explanation for the significant delay in the lodgement of the application. The Tribunal considers that had the applicant been from a Christian family which had been threatened by the authorities and hampered in relation to the practise of their beliefs, that he would have sought Australia’s protection at a significantly earlier opportunity, rather than waiting for some 12 years after his arrival to do so. The Tribunal further considers that the applicant’s failure to lodge a Protection visa for several months after his return to Australia in 2013, when he claimed his father was arrested whilst he was in China in May 2013, is further indicative of the fact that he does not genuinely fear harm in China.  The Tribunal’s findings are further strengthened by the evidence indicating that the applicant has returned to China on several occasions since his initial arrival in Australia in 2002. The Tribunal does not accept that this indicates he had any genuine fear of harm in China. The Tribunal does not accept that the applicant would return to China on several occasions, including in 2013, if his father was arrested in 2012 and his family had previously been threatened and restricted in the practise of their religious beliefs.

1. The applicant’s claims relating to his relgion are also not supported by independent evidence before the Tribunal relating to the Local church and underground religious churches in Fujian. As indicated above, the applicant has claimed that his father was arrested in 2012 and 2013 and his [Relative 1] was also detained in 2014 whilst she was pregnant and then was dismissed from her job as [an occupation]. The applicant also told the Tribunal that he was warned by the police when he was at school and he was not allowed to participate in any family church activities. When the Tribunal discussed the independent evidence with the applicant and advised him that there are no reports of Local church members in recent years being arrested or harmed, and DFAT has reported that it is primarily leaders who may be at risk of harm, the applicant stated that his church is under surveillance from the government which will not allow it to have religious freedom. The applicant also stated that his church and beliefs are mainly based on evangelising which is opposed by the Chinese government. 

2. As discussed during the hearing, the independent evidence as set out in DFAT reports indicates that Fujian is one of the most liberal provinces in China in terms of its treatment of underground religious groups. The information available to the Tribunal also indicates that there are many unregistered churches in Fujian and these churches operate quite openly. In the Tribunal’s view, the noticeable dearth of reporting of abuses in Fujian by major human rights monitoring groups such as Amnesty International, and the lack of reports of instances of harassment or arrests, indicates that there is in fact a high degree of tolerance for Christian activities in general and for the unregistered churches in particular in Fujian Province. The DFAT reports also indicate that in practice, it is largely only leaders, rather than ordinary followers, who amass a large (undefined) and unregulated congregation or personal following who can attract negative attention from the authorities. A 2009 report on the Protestant Church in Fujian Province in a Global Chinese Ministries[4]  newsletter confirms that there are large numbers of independent house churches in Fujian. The report also indicates that ‘[i]n general, local government in Fujian seems fairly tolerant of unregistered believers as it is rare that one reads of cases of persecution of house-church Christians in this province’.[5] Fujian is rarely mentioned in reports on breaches of religious freedom by the US Department of State, the United States Commission on International Religious Freedom, Amnesty International, Human Rights Watch or the various Christian NGOs that report on China.

   [4] Global Chinese Ministries is described on the website of the Overseas Fellowship Mission (OMF) as: “Written by China expert Tony Lambert, this monthly newsletter shares current events, milestones and testimonies from around China to help you pray for Chinese people all over the world.” Source:

   [5] Global Chinese Ministries 2009, ‘The Protestant Church in Fujian Province’, OMF (Overseas Missionary Fellowship) International website, April  < CISE1310071628.  The information is said to be taken from information has been taken from November 2008 Tianfeng and History of Christian Missions in China by K.S. Latourette. Tianfeng is a Protestant magazine published by the TSPM/CCC and can therefore not be taken to be unbiased in relation to house churches.

3. In its Annual Report published in April 2015, China Aid includes a diagram of the total number of people detained by province, however Fujian province is not included in the diagram.[6] In November 2007 the Department of Foreign Affairs and Trade (DFAT) advised that they had no information on the treatment of unregistered churches in Fujian and reported on the difficulty in gaining politically sensitive information in China[7]  There have been a few actions against local Protestants in Fujian have been reported[8],[9],[10],[11].

   [6] China Aid Association 2015, China Aid 2014 Annual Report – Religious and Human Rights Persecution in China, 30 April, p.13, Table 4 <​ > CISEC96CF1731

   [7] Department of Foreign Affairs and Trade (DFAT) 2007,  CISQuest CHN9120 - 'Shouters' Christian group and Fujian Province, 28 November, CX189037

   [8] Li, Yao 2012, ‘Christians warn against cult influence’, China Daily, 20 December < >  CX312592

   [9] Department of Foreign Affairs and Trade (DFAT) 2013, RRT Country Information Request - CHN41439 - Family planning; Falun Gong; Christians, Returnees, and Corruption, Country Information Report No. 13/28, 3 July, CX310619

   [10] See Section 5 Cults and Sects

   [11] ‘Abduction and Building Closures in Fujian’ 2010, China Aid, 19 October < CX264498

4. Having considered the applicant’s claims regarding the Local church, the Tribunal does not accept that the applicant or his family members are Christian or that his father was detained in 2012 or 2013 or his [Relative 1] detained and her position as [an occupation] terminated. The Tribunal does not accept any of the applicant’s other claims in relation to his Christianity and does not accept that the applicant was questioned when he returned to China, as he claimed during the Department interview. The Tribunal is not satisfied that the applicant will have any involvement in underground Christian churches upon his return to China or that there is a real chance that he will suffer serious harm for this reason upon his return to China. Nor is the Tribunal satisfied that there is a real risk that the applicant will suffer significant harm for this reason if he is returned to China from Australia.  

   Claims relating to China’s family planning policies

5. As stated above, the Tribunal accepts that the applicant has three Australian born children. The applicant has claimed that because he has three children who were born in Australia he will be required to pay fines for the children who are born outside of the family planning policies. During the Department interview, the applicant told the delegate that he would be unable to pay the fines. The applicant claimed, when the issues were discussed with him during both the interview and hearing, that the recent policy by the Chinese government will not apply to him and he will have to pay the fine for at least two of his children. The applicant told the delegate that his father telephoned the local government and then provided the applicant the figures on the fines for breaching the Family planning laws, and these are subject to change and are not fixed. When the independent evidence was discussed with him during the hearing, the applicant repeatedly stated that the information from the Chinese government is not believable and they do things secretly because they do not want to expose their punishments to foreigners. The applicant stated that if they return with their children they will have a difficult life and be subject to mental torment. The applicant also denied that he would be able to pay the fine in instalments and stated that his children will be unable to obtain a hukou. When the information, indicating that in Fujian people are able to register their children even if the fine has not yet been paid, was discussed the applicant denied that this is the case. He stated that this is not true and he is aware of people who are being pursued and persecuted for having any “out of plan” children. The applicant claimed that because he is from the countryside he will be required to pay the fine and his children will be denied schooling, education and health care.

6. During the hearing, the applicant also claimed that he fears that he will be subject not only to the fine, but to contraceptive surgery. The applicant stated that, although he has not mentioned it previously, when his mother was pregnant she was sent a letter issued by a community centre advising her that she should have a termination. The applicant’s mother was forced to have “contraceptive surgery” and had ongoing health problems due to this issue and her health declined over the years. When asked why he had not raised this issue before, the applicant stated that he feels guilty because his mother parents gave birth to an extra child and she was arrested and forced to undergo contraceptive surgery and she later passed away. The applicant also realised that the hearing was his last opportunity to tell the Tribunal all of his claims and it is for that reason that he decided to raise it today.

7. As stated above, the Tribunal accepts that the applicant has three Australian born children and none of the children were born with the express permission of the Chinese authorities.  However, the Tribunal does not accept that the applicant will be required to pay a fine for all three children or he will be unable to register his children and obtain hukous for them. The evidence discussed during the hearing indicates that on 27 December 2015 the National People’s Congress amended the Population and Family Planning Law with effect from 1 January 2016, such that there would be the full implementation and encouragement of a two-child policy, and the cancellation of forced contraception.[12] DFAT has assessed that for the vast majority of residents in Fujian, Social Compensation Fees operate akin to a form of unwelcome taxation, rather than as a punitive arbitrary measure. Although the DFAT has reported that the actual application of Social Compensation Fees varies across Fujian and is subject to local discretion, leaving open the possibility of individual or institutionalised manipulation, in March 2016 the Deputy Chairman of the Fujian Family Planning Association stated that if parents had received previous notification of Social Compensations Fees, these penalties stood, but people who had children in breach of the March 2014 Population and Family Planning Regulation of Fujian who had not received notification of Social Compensation Fees, would not be pursued by local authorities. DFAT reported it therefore understands the following:

   … outstanding Social Compensation Fee notices issued under the March 2014 Population and Family Planning Regulation of Fujian are still enforceable and the February 2016 Population and Family Planning Regulations of Fujian only applies to children born after 1 January 2016. However, the 2016 regulations also apply to persons for whom Social Compensation Fee notices have not been issued for children born prior to 1 January 2016.

   [12] Department of Foreign Affairs and Trade 2016, DFAT Thematic Report: Fujian Province, People’s Republic of China, 16 December, p. 12.

8. Importantly, DFAT has also indicated that the payment of the Social Compensation fee is no longer a prerequisite for accepting an application for a hukou.

   The hukou (or household registration) system ties access to services including health and education to an individual’s place of birth or, in some circumstances, their parent’s place of birth (see 5.4). In August 2015, the Fujian Public Security Department implemented a new ‘Household Registration Management System’ which directed local authorities to not treat the payment of Social Compensation Fees as a prerequisite Children whose unauthorised birth might previously have gone unregistered are now able to apply for a hukou irrespective of whether relevant Social Compensation Fees have been paid.[13]

   [13] Department of Foreign Affairs and Trade 2016, DFAT Thematic Report: Fujian Province, People’s Republic of China, 16 December, p. 14,

9. On the basis of the above evidence, the Tribunal does not accept that the applicant will be liable for payment of the Social Compensation fee for all of his children. The applicant has not claimed that he has been issued with a Social Compensation fee for his second or third born children. The evidence set out above indicates that his first born child was born when the applicant and his wife had married and was not, therefore, born outside of China’s family planning policies. The evidence also indicates that couples in Fujian are now permitted to have a second child. The Tribunal does not accept that the Social Compensation fee will be payable for the applicant’s first and second born children.

10. The Tribunal accepts that a fine, or Social Compensation fee, will be payable, for the applicant’s third born child. The evidence indicates that the Social Compensation Fees are calculated on the basis of average annual disposable income for urban residents or the average annual net income for rural residents, or residents’ actual income, whichever is the greater). The fee is levied on a multiplier basis, depending on the couple’s circumstances. DFAT understands that the Social Compensation Fee multiplier rates for people in breach of the amended February 2016 Population and Family Planning Regulation of Fujian (ie. couples who have a third child) are likely to be similar to the multiplier rates described in the March 2014 Population and Family Planning Regulation of Fujian outlined above.[14] DFAT has also earlier advised that a fine can be paid in instalments over a period of three years in Fujian and that a hukou would be issued to a child prior to the full repayment; and there would be no effect on access to public schools or other services.[15]

    [14] The average annual disposable incomes for urban residents and net average incomes for rural areas differ according to the county, city or district. In Fuqing (a county-level city near Fuzhou with a population of approximately 1.34 million people) the average annual disposable income for rural residents was RMB32,279 (AUD6,840) and the average net annual income for rural residents was RMB15,061 (AUD3,190) in 2013. Social Compensation Fees calculated in 2014 were based on these figures.

    [15] Department of Foreign Affairs and Trade 2013, DFAT Report 1473 – MRT/RRT Information Request: CHN41439, 7 February.

11. When the payment of the fine was discussed during the Department interview, the applicant confirmed that he had travelled outside of Australia on eight occasions. When asked by the delegate how he was able to afford all of the trips, the applicant stated that prior to the birth of his children he could afford to pay for the airfares. The applicant also told the delegate that he had borrowed money from various people in Australia, although the loans are undocumented. The applicant confirmed during the hearing that he and his wife purchased property in Australia, but denied that he would be able to afford to pay the Social Compensation fee. The applicant has claimed that although his business continues to operate in Australia that it does so on a limited basis and that he and his wife and children are now living with her parents in [City 1]. He also claimed that he continues to owe a large mortgage on the property in [Suburb 1].

12. The Tribunal accepts that the applicant’s wife and child may not have considerable savings or immediate access to their own funds, and they may have a mortgage on their property in [Suburb 1]. However, the Tribunal does not accept that they owe large amounts of money to individual persons or that they are without any financial resources of their own. The Tribunal is also satisfied that the applicant has been employed in the past in Australia and he will be able to obtain employment upon his return to China. The Tribunal has also found above that the fine for their third child can be paid in instalments and they will be able to register their third child even before the Social Compensation fee is paid. The Tribunal is not satisfied, having considered all of the evidence, that the payment of a Social Compensation fee for their third child is such that it amounts to serious harm or significant harm.  The Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm due to the payment of the Social Compensation fee or that there is a real risk that he will suffer significant harm for this reason.

13. The Tribunal has also considered the applicant’s claims that he will be required to undergo “forcible contraception”. The Tribunal is prepared to accept that the applicant’s mother was subject to forcible sterilisation, but does not accept his belated claims that this was the cause of her death some 10 years ago. The Tribunal is also not satisfied that there is a real chance or a real risk that the applicant or his wife will be required to undergo forced sterilisation in Fujian. DFAT has also reported that while the March 2014 Population and Family Planning Regulations of Fujian permitted unspecified ‘remedial measures’ to be taken against an individual violating its provisions, “in-country contacts suggested that the use of extreme remedial measures, such as forced sterilisation or late term abortions (which have occurred previously in China), was unlikely in Fujian”.

    Conclusions on past harm and real chance/real risk

14. In reaching the above conclusions, the Tribunal has had regard to the applicant’s comments that accurate reports on the situation for Christians and in relation to family planning is not available due to the secrecy in which the Chinese authorities operate. The Tribunal accepts that the Chinese government places severe restrictions on international human rights agencies and other observers, but is nevertheless satisfied that the information obtained from DFAT and other human rights agencies is generally accurate and reliable. The Tribunal is not satisfied, therefore, that there is a real chance that the applicant will be subject to serious harm or a real risk that he will be subject to significant harm due to the imposition of a fine for the birth of his third child. The Tribunal has not accepted that the applicant will be subject to a fine for the first or second born children and has also found that he has the means to pay the fine for the third child which can be paid in instalments, and the child’s hukou registration is also not predicated on the basis of the payment of the fine. The Tribunal has also not accepted that the applicant or his wife will be subject to forced sterilisation or any other means of forced contraception and is not satisfied therefore, that there is a real chance that the applicant will suffer serious harm as a result of this issue or that there is a real risk that he will suffer significant harm for this reason. The Tribunal has also not accepted that there is a real chance or a real risk that the applicant will suffer serious or significant harm as a result of underground Christianity.

15. The Tribunal is not satisfied, having considered all of the evidence both individually and cumulatively, that there is a real chance that the applicant will suffer serious harm for reasons of his race, religion, nationality, membership of a particular social group or his political opinion, if he returns to China now or in the reasonably foreseeable future. The Tribunal finds, therefore, that the applicant does not have a well founded fear of persecution for a Convention reason.

16. The Tribunal is also not satisfied, when the evidence is considered both individually and cumulatively, that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China that there is a real risk that the applicant will suffer significant harm, which includes arbitrary deprivation of life, torture, the death penalty, cruel or inhuman treatment or punishment or degrading treatment or punishment.

    CONCLUSIONS

17. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

1. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

2. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

   DECISION

3. The Tribunal affirms the decision not to grant the applicant a Protection visa.

   Susan Pinto
   Member

   
   

   RELEVANT LAW

4. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

5. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

6. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

7. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

8. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.